To those who argue that the phrase 'separation of church and state' does not appear in the Constitution, it can be said that the phrase 'right to a fair trial' also does not appear there. Does this mean that we don't have such a right? Can the state subject us to an unfair trial so long as it is: speedy, public, with an impartial jury, with a defense counsel, with witnesses, etc.? Apparently.

Bloomberg reports (via Jurist) that the Supreme Court has upheld the conviction of a man in California who defended himself, but was allowed almost no access to his jail’s law library:

The justices said that because there is no established right of access to a prison law library for defendants representing themselves, Espitia couldn’t win reversal of his state-court conviction in federal court.

Espitia, who was in jail while awaiting trial, was given no law library access before his trial began and about four hours of access just before closing arguments. ... His lawyer, W.C. Melcher, said in court papers that jail authorities defied repeated orders from the trial judge handling the case to provide law library access. “Espitia was deprived of any pretrial access to legal research materials and, accordingly, of any opportunity to make a meaningful defense,’’ Melcher argued.

Once again: there is no explicit constitutional right to a fair trial. This is what the Constitution actually says:

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Do you see the words “fair trial” above? No. Therefore, so long as the above listed provisions are all adhered to, no constitutional violations have occurred — right? That’s arguably the case. Those who insist that the absence of the phrase “separation of church and state” means that the concept isn’t present, either, would have difficulty arguing that the concept “right to a fair trial” exists without the phrase being there.

Now, though, we have an example of how the government might create a situation where the formal provisions listed in the Constitution are followed without also substantively providing a fair trail to the accused. It probably wasn’t smart of Espitia to defend himself (notice that he obtained a lawyer for his appeals on this constitutional matter), but given the fact that he did make this choice (which he has a right to do), it was wrong for the prison to defy court orders to provide Espitia with materials that were already generally available.

 

Read More:

• Separation of Church and State 101
• Secularism 101